One More Thing Before You Go: Bag Checks Are “On Clock” Per Cal Supreme Court

Posted in: Employment Law by Dowling Aaron on

Taking the opposite position of the United States Supreme Court evaluating federal law (read more here), the California Supreme Court has decided that time spent on the employer’s premises waiting for and undergoing required exit searches of packages, bags, or personal technology devices brought to work purely for personal convenience by employees is compensable as “hours worked” in California.

In the case of Frlekin v. Apple, Inc., the employer, Apple, had a bag search policy that required search of employees’ bags, packages, purses, backpacks, briefcases, and personal Apple technology devices whenever the employee left the store. Apple said the time spent waiting for and undergoing these searches was not compensable as “hours worked” in California, in part because employees could opt not to take a bag and therefore would not be required to undergo the search; in other words, the decision to bring a bag to work was “voluntary.”

The California Supreme Court said that the California Wage Orders had to be reviewed “liberally” and with an eye towards “protecting and benefiting employees.” The Court said that the search policy “controlled” employees by (1) requiring employees to comply with the policy under the threat of discipline, including termination, (2) confined employees to the premises as they waited for and underwent a search, and (3) required employees to complete tasks while awaiting and during the search like finding a manager and waiting for that person to conduct the search.

The Court also said that the Wage Orders intended to make compensable the time during which employees are controlled—even if such time is not required. Therefore, because the employees undergoing the search are under the “control” of the employer for the purpose of stopping employee theft, the time is compensable.

Why is the law different under the Federal view? The Fair Labor Standards Act generally exempts non-required work activities, for example the Portal-to-Portal Act explicitly classifies activities prior to and after the workday as non-compensable. The California Supreme Court said that the federal law “differs substantially” from California law, and that a State may enact law that provides employees greater protection than the FLSA, which California has done.

The good news is that the Court confirmed its previous decision regarding employer-provided transportation, saying that “unless an employer compels the employee to use a certain kind of transportation or employer-provided transportation, it would be, without more, unreasonable to require the employer to pay for travel time.” (Emphasis in original). In other words, Apple’s Policy was compensable time because the employer-controlled activity primarily serves the employer’s interest. On the other hand, optional services that primarily benefit the employee, like providing voluntary free transportation, is a service to employees and therefore not compensable time.

COUNSEL TO MANAGEMENT:

The takeaway here is that while California has enacted and will continue to enact employment laws more stringent than other States, the Court’s analysis here continues to validate and support voluntary optional employer-provided transportation as a benefit and service to employees. If you have questions about what should be counted as “on the clock” time, contact The Saqui Law Group, a Division of Dowling Aaron Incorporated.

 By: Rebecca A. Hause-Schultz

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